California Judicial Conduct Handbook Excerpt: David M. Rothman California Judges Association - California Commission On Judicial Performance - California Supreme Court
California Judicial Conduct Handbook Excerpt: David M. Rothman California Judges Association - California Commission On Judicial Performance - California Supreme Court
California Judicial Conduct Handbook Excerpt: David M. Rothman California Judges Association - California Commission On Judicial Performance - California Supreme Court
JUDICIAL
CONDUCT
HANDBOOK
Third Edition
DAVID M. ROTHMAN
Retired Judge of the Superior Court
THOMSON
\NEST
CJBNS.ORG
CHAPTER 1
[1.00]
1.00
Pt.
thinking about gathered from the above, along with formal and informal ethics
opinions given by the Ethics Committee of the California Judges Association
over many years,2 as well as issues that have come up in discussions with
judges over the years. It is hoped that by examination of the real issues judges
have encountered, both in questions they have raised and discipline that has
been imposed, the Handbook will foster understanding of the Code of Judicial
Ethics and help judges to meet the high expectations placed on them to render
fair and impartial justice, and avoid judicial conduct problems.
These informal opinions are given by the committee in response to telephone calls to the Eth
ics Committee. The committee gives hundreds of these informal opinions every year, and the
most important of these informal opinions are published annually and distributed to all the
judges in the state in the Judicial Ethics Update.
2
3 rothmand@aol.com.
Ch. 1
1.11
I have been taken with the idea o f providing judges with some kind of
systematic means to work through particularly complex or confusing ethics
problems: Disqualification and disclosure; gift-related issues; questions of
community activities and outreach; and ethics issues related to weddings.
These guides resulted from discussions, review, and a number of tryouts of
the guides in the New Judge Orientation program of the Center for Judicial
Education and Research (CJER). Judge La Doris Cordell co-authored the first
version of the Disqualification and Disclosure Guide, and Judge Ronni
MacLaren co-authored the gift-related guides. Rod Cathcart of the CJER has
also collaborated on the preparation of these guides. As with all the material in
the
Handbook,
In the use of the word "judge" I generally mean all judicial officers.
In this book I will be using the word "judge" to mean any form of judicial of
ficial who is bound by the Code of Judicial Ethics.4 There will be occasions
where the rules may be different for various judicial officers; in those cases, I
will note the differences.
of the
The Judicial Conduct Reporter. Judges are fortunate to have the benefit
The Judicial Conduct Reporter, a quarterly
Drake University,
Cynthia Gray, Director of the Center for Judicial Ethics of the American
Judicature Society. Every judge in California receives a copy of the
Although the
Reporter
Reporter.
important for California judges because judicial ethics codes around the United
States are very similar.
II.
A.
[1.11]
Proposition
people on November
California to provide as follows: "The Supreme Court shall make rules for the
conduct of judges, both on and off the bench, and for judicial candidates in the
4
1.11
Pt. 1
Geiler
v.
Commission
Ch. I
1.20
California's versions, however, have always differed from the ABA model in
some respects.
In adopting the current Code of Judicial Ethics, the Supreme Court
considered recommendations from the Supreme Court Advisory Committee on
the Code of Judicial Ethics9 and public comments on the proposed code.
No other officials of government are bound by such rigorous standards of
conduct and none are so scrupulously policed. Judges in California face not
only appellate court review and the periodic scrutiny of the electorate whom
they serve, but are also subject to the disciplinary jurisdiction of the Commis
sion on Judicial Performance.10 Moreover, judges face the jurisdiction and
scrutiny of the Fair Political Practices Commission.
B.
[1.20]
Rule of law.
The Supreme Court Advisory Committee on the Code of Judicial Ethics has continued to
review matters concerning the Code of Judicial Ethics since the code was adopted in 1 996. The
first chair of the committee was Justice Charles S. Vogel, of the Second District Court of Ap
peal, now retired, and the current chair is Justice Richard D. Fybel, of the Fourth District Court
of Appeal.
9
1.22
Pt. 1
that, "[a] judge shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and impartiality
of the judiciary." Therefore, "[a] judge must avoid all impropriety and appear
ance of impropriety."12
The Code of Judicial Ethics further develops these concepts in a number
of provisions. Canon 1 begins with the statements that "[a] judge shall uphold
the integrity and independence of the judiciary," and that "[a]n independent
and honorable judiciary is indispensable to justice in our society."13 This canon
goes on to instruct that "[a] judge should participate in establishing, maintain
ing, and enforcing high standards of conduct, and shall personally observe
those standards so that the integrity and independence of the judiciary will be
preserved...."14
[1.22]
Ch. 1
1.22
thing, is not always easy. Indeed, when I reflect upon the work that we
judges do, the word 'heroic' comes to mind. We have been taught that
heroes are those people who submit themselves to the most treacherous of
situations, entirely oblivious to fear. But, if one is oblivious to fear, then
that person's actions are really of little moment. It is precisely in
acknowledging fear, in facing danger with enormous amounts of trepida
tion, in forging ahead even while quivering, that heroes are born. So, our
stereotypical hero, by definition, cannot perform heroic acts. It is only
ordinary people, like you and me, who have this heroic potential. Heroes
do not need to shed blood. They do not need loud confrontations. Some
of the most heroic acts are quiet demonstrations of what is right in the
face of groups whose actions are definitely wrong.
"We must wear our judicial robes with courage and compassion, even in
the face of challenge and controversy; for, in our noble profession, this is
what being heroic is all about."
We judges are ordinary people asked to do the extraordinary. We're
given enormous power, and yet required to eschew the temptation to abuse
power. We are guardians of the rule of law and entrusted with the protection
of the liberty of the people, while constantly tempted to compromise our honor
and abandon our trust by succumbing to biases and prejudices, by the natural
desire for acceptance and advancement, or by fear of political pressures or
public disapproval. And these are only some of the forces and influences that
can get in the way of judicial integrity. There are many things that one can do
to counter these influences, and that is, of course, the point of this Handbook.
Consider the "central principle of judicial ethics,"11 focus on who you are and
what you have been entrusted to do,18 and picture those whom you consider as
the great judges of our history.19
17
See
Handbook
section 1 .23.
18
See
Handbook
section 1 .25.
19 In an article about Justice John Marshall Harlan's dissent in Plessy v. Ferguson ( 1 896) 1 63
U.S. 537, 552, entitled Harlan's Great Dissent ( 1 996), No. I, Kentucky Humanities, published
by the Kentucky Humanities Council, Charles Thompson relates this story: "At a 1993 ceremony
in memory of [Justice Thurgood] Marshall, a colleague, [U.S. District Judge] Constance B aker
Motley, recalled that when Marshall was the lead attorney in the NAACP's fight to end segrega
tion, he picked himself up in low moments by reading aloud from Harlan's dissent . . . . As
quoted in Judicial Enigma, a new biography of Harlan, Judge Motley said: 'Marshall admired
the courage of Harlan more than any justice who has ever sat on the Supreme Court. Even Chief
Justice Earl Warren's forthright and moving decision for the court in Brown [v. Board of Educa
tion ( 1954) 347 U.S. 483] did not affect Marshall in the same way. Earl Warren was writing for
a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity.' "
<http://www.law.louisville.edu/library/co!lections/harlan/?pageid=dissent.htm> (as of Apr. 5,
2007).
1.23
Pt. 1
20
3.
[1.23]
Before 1 992, the code did not contain a statement of its central guiding
purpose. The general concept set out in canon 1 of "[a]n independent and
honorable judiciary" being "indispensable to justice in our society," did not re
ally express a central inherent judicial ethic behind the concept of "justice."
This was an important omission in the ABA Model Code as well as in the
California code, although apparently not an unusual one.21 The Code of Judicial
Ethics adopted by the Supreme Court in 1 992 added the following paragraph
to the Advisory Committee Commentary to canon 1 :
20
Justice John M arshall Harlan, Brady-Handy Photograph Collection, Library of Congress,
Prints and Photographs Division, Washington, D.C., LC-DIG-cwpbh-0461 5.
21
See Kass, Toward a More Natural Science ( 1985), pp. 224-246, where the author discusses
the "inherent ethic" in the medical arts: the precepts that define the medical profession. He notes
the differences between the Hippocratic Oath and the Principles of Medical Ethics of the
American Medical Association and, in particular, the extent to which the concept of acting to
heal the sick is expressed in the former, but not in the latter.
10
Ch. I
1.23
Deuteronomy 1 6: 18-20.
24
Handbook
section 2.15.
11
1 .24
4.
[1.24)
Pt. 1
With the central principle of judicial ethics in mind, it becomes clear why
judges must be concerned with their conduct in practically every aspect of
their lives - both public and private. A judge "must expect to be the subject of
constant public scrutiny," and "accept restrictions on the judge's conduct that
might be viewed as burdensome by other members of the community and
should do so freely and willingly."25 Restraints on the conduct of a judge are
justifiable where there is a rational nexus between the conduct, either in the
courthouse or in private life, and the integrity of the decision-making process.
Otherwise, the conduct is permissible. Even if a connection exists, some
conduct should not be restrained by the code because of significant overriding
constitutional or other policy considerations.
Integrity of the
Public
and Private
NEXUS
Process
Conduct
5.
[1.25]
Decisionmaking
As one who holds such high office, a judge must be acutely and constantly
aware that everything he or she does or says must be managed through the
filter of identity with this high office. Whether you are CEO of a major
company, senator, admiral, general, judge or justice, your identity is entwined
with your title and position. What you do and say must always be in the
service of (or, at the very least, be neutral to) the goals and objectives of your
office. A judge needs to develop the mental process that allows for this kind
of mindfulness to take place. The key question, of course, is whether the
conduct undermines those legitimate goals and objectives of high office. This
idea will be discussed more fully in Handbook section 2.46 in the context of
inappropriate judicial demeanor in court. Here, I simply want to introduce the
idea to underscore the importance of this frame of mind. As you review vari
ous aspects of public and private life, come back to consider your identity
with your office.
25
12
Ch. 1
1.30
Consider just one example. A lawyer (who is not a close personal friend)
picks up the tab for your lunch. Does receipt of such a benefit from a lawyer
advance the legitimate goals and objectives of your office? Does it help you,
as a judge, make honest decisions and advance the public perception of your
integrity?
III.
A.
[1.30]
The Constitution requires the Supreme Court to "make rules for the
conduct of judges," and, therefore, compliance with such a code is obviously
mandatory.26 Moreover, use of the word "shall" in the Code of Judicial Ethics
mandates compliance.27
Fletcher
issue.
Id.
v.
Commission
at p. 922.
(1998) 1 9 Cal.4th 865 , 9 1 8, fn. 24. See dissent which raised this
29 Com. on Jud. Performance, Ann. Rep. (2005), Public Censure and Bar, p. 1 8 . The material
noted in the text is in the full decision of the commission issued on March 2, 2005, p. 1 8.
13
1.31
B.
[1.31]
Pt. 1
commentary that follows each canon, "by explanation and example, provides
guidance as to the purpose and meaning of the Canons," but the commentary
"does not constitute additional rules and should not be so construed."31 In ad
dition, as already noted, the commentary to canon
C.
[1.32]
Judges
"Anyone who is an officer of the state judicial system and who performs
judicial functions" is a "judge" for the purposes of the application of the Code
of Judicial Ethics.33 All provisions of the code apply to the following categories
of those performing judicial functions:
Constitutionally defined judges and appellate justices;
Subordinate judicial officers;34
Magistrates;
Judges of the State Bar Court.35
30
31
32
See
Handbook
section 1.23.
Cal. Code Jud. Ethics, canon 6A was amended, effective January 1, 2005, to replace "court
commissioner, referee," with the term "subordinate judicial officer," which is defined in the
Terminology section as "a person appointed pursuant to article VI, section 22 of the California
Constitution, including, but not limited to, a commissioner, referee, and hearing officer."
34
35 Bus. and Prof. Code, 6079. 1, subd. (a). The 1 999 Edition of the Handbook erroneously
cited this section as 86079. Business and Professions Code 60 79. 1, subd. (a) provides: " .. .
Any judge appointed under this section shall be subject to admonition, censure, removal, or
retirement by the Supreme Court upon the same grounds as provided for judges of courts of
record of this state." California Rules of Court, rule 9. ll(d) sets out the process for discipline
for misconduct or disability of State Bar Court Judges. This Rule requires complaints against
State Bar Court Judges to be addressed to the Executive Director - Chief Counsel of the Com-
14
Ch. 1
1.32
Special masters.36
4 Cal. Code Jud. Ethics, canon 6D. Court-appointed arbitrators mentioned in this canon relate to
arbitrators serving in judicial arbitration. Cal. Rules of Court, rule 3 .814(d)(2) requires members
of arbitration panels to certify that the member is aware of and will comply with canon 6 of the
Code of Judicial Ethics.
41
Gov. Code, 11475.20 et seq. Gov. Code 1 1475 .40 excludes certain provisions of the Code
of Judicial Ethics from application to Administrative Law Judges. Gov. Code 1 1 475 .50
provides for discipline for violations of the code or failure to comply with certain gift rules.
42
Workers' Compensation Administrative Law Judges are required to comply with "the Code of
Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges and shall not otherwise,
directly or indirectly, engage in conduct contrary to that code or to the commentary to the Code
of Judicial Ethics. Labor Code 1 23.6, subd. (a). The administrative director of the Workers'
Compensation system is required to adopt regulations to enforce this section. Labor Code
1 23 .6, subd. (a).
43
15
1.33
Pt. I
The applicability of the code does not disappear while a judge is on sab
batical or taking a leave of absence. See Handbook section 1.34.
2.
[ 1.33)
Judicial Accountability
16
Ch. 1
1.33
of record of officers such as commissioners to perform subordinate judicial duties." The term
"subordinate judicial officer" apparently comes from language in the Brown-Presley Trial Court
Funding Act of 1988 where the term is defined as a "court commissioner or referee authorized
by statute." Gov. Code, 77006.
49
1.34
Pt. 1
Section 638 and 639 referees are, however, subject to canon 6D of the
Code of Judicial Ethics and, if such referee is an active or inactive lawyer , the
person is subj ect to the discipline of the State Bar. See Handbook sections
1 .36 et seq. Referees who are, however, subordinate judicial officers (such as
traffic and juvenile referees) are subject to discipline by the Commission on
Judicial Performance.
3.
[1.34]
18
Ch. 1
1 .34
that, absent a specific rule, a judge on a leave of absence (other than to run for
non-j udicial office or sabbatical) is relieved of the duty to comply with the
Code of Judicial Ethics.
In the case of voluntary leaves (other than running for non-judicial office
or sabbatical),53 it should be noted the Code of Judicial Ethics has wide ap
plication in a variety of circumstances that have no relationship to performance
of "judicial functions" (see, for example, canons 1 , 2, 4 and 5). Misconduct by
a j udge, whether or not the j udge was authorized at that time to perform a
j udicial function, brings the j udiciary into disrepute and damages public
confidence in the integrity of the judiciary.s4
Moreover, article VI, section 1 8 , subdivision (d) of the California
Constitution, authorizes the commission to discipline a judge or former judge
"for action[s] occurring not more than 6 years prior to the commencement of
the j udge' s current term or of the former judge' s last term." On a number of
occasions, the commission has disciplined a judge for conduct that occurred
before that person became a judge.ss There is no substantive reason why this
same understanding would not apply during any sort of absence from j udicial
duties, whether voluntary or involuntary.
In circumstances of involuntary leave (disqualification or suspension),56 it
might be argued that because the j udge is prohibited from performance of
j udicial duties, he or she is excluded from compliance with the Code of
Judicial Ethics by the language of canon 6A. For reasons noted already, such a
53 Leaves of absence other than those expressly noted in the text (to run for other non-judicial
office or for sabbatical) can include "personal leave," vacation, illness (see Cal. Rules of Court,
rule 1 0.603(c)(2)(D), (E), (H)), and education (see Cal. Stds. Jud. Admin., standard 1 0 . 1 l (d) and
(h)). Other forms of leave, not expressly directed to judges, include leave to attend to military
obligations and jury duty. Apparently, judges and subordinate judicial officers have taken
informal unpaid leaves of absence, although it is not clear what provisions of law authorize such
leaves.
See Inquiry Concerning Judge Couwenberg, Com. on Jud. Performance, Ann. Rep. (2001),
Removal from Office, pp. 1 6- 17. See full decision of the commission issued on August 1 5,
200 1 , pp. 1 1 - 1 2, where "general ethical standards" were applied to a judge for misrepresenta
tions made in the Personal Data Questionnaire he submitted to the Governor before appointment.
54
55
See
Handbook
56 The Constitution requires that a judge be "disqualified from acting as a judge, without loss of
salary" pending certain criminal proceedings or pending a petition to the Supreme Court for
review of a decision by the commission for removal or retirement of a judge. Cal. Const., art.
VI, 1 8 , subd. (a). The commission has the authority to "disqualify a judge from acting as a
judge, without loss of salary, upon notice of formal proceedings by the commission charging the
judge with judicial misconduct or disability." Cal. Const. , art. VI, 8, subd. (b). Finally, the
commission is required to suspend a judge with loss of salary where a judge is found guilty or
pleads guilty or no contest to certain criminal charges. Cal. Const., art. VI, 1 8, subd. (c).
57
See
19
1 .35
Pt. I
4.
[1.35]
A retired judge who applies to the Chief Justice to serve in the Assigned
Judges Program59 and meets eligibility requirements for such service, is
required to comply with all of the provisions of the Code of Judicial Ethics
with the exception of the following :
Appointment to government positions - canon 4C(2); and
Fiduciary activities - canon 4E.
Even while he or she is not actually serving on assignment, an assigned
judge is bound by all of the provisions of the Code of Judicial Ethics (with
only the two noted exceptions) to the same extent as an active sitting judge,
including all of the provisions of the canons that apply to the private life of a
judge.
before retirement from judicial office.61 As a result, the Chief Justice maintains
disciplinary authority over retired judges serving in the program.
58 In November 2005, a special election was held to consider eight propositions. Proposition 77,
which was defeated, would have turned over to three retired judges the setting of legislative and
congressional district boundaries. Although the proposition contained provisions regarding gifts
and for the making of rules concerning improper communications, these retired judges, entrusted
with a matter of extraordinary importance to our system of government, would not have been
subject to the Code of Judicial Ethics or any form of judicial accountability were they to have
engaged in misconduct in performing this task.
See Cal. Const., art. VI, 6, subd. (e). Assignment under these circumstances is distinguished
from stipulation by the parties for a retired judge to serve as a temporary judge under Cal.
Const., art. VI, 2 1 . See Handbook section 1 .36 regarding ethics rules applicable to temporary
judges.
59
60
61
20
Ch. 1
1 .36
62
Standards and Guidelines for Judicial Assignments (effective as revised April 20, 2006)
IV-B - 1 .
63
Cal. Const., art. VI, 2 1 provides for the appointment of temporary judges pursuant t o the
stipulation of the parties. "On stipulation of the parties litigant the court may order a cause to be
tried by a temporary judge who is a member of the State B ar, sworn and empowered to act until
final determination of the cause." And see Cal. Rules of Court, rule 2.8 16.
64
65
66
67
Handbook
1.3 6
Pt. 1
Civil Procedure section 1 28 1 . 6). The Supreme Court did not clarify this issue
in the adoption of the revision of canon 6D in March of 1 999. The question,
however, was made moot by the adoption in 2002 of the Ethical Standards for
Neutral Arbitrators in Contractual Arbitration pursuant to Code of Civil
Procedure section 1 2 8 1 . 8 5 . 68
Bar who serve in the capacity of temporary j udges, referees under Code of
Civil Procedure sections 638 and 639, and arbitrators in judicial arbitrations.70
Rule 1-7 1 0 of the Rules of Professional Conduct, adopted by the Supreme Court in March
1999. provides: "A member who is serving as a temporary judge, referee, or court-appointed
arbitrator, and is subject under the Code of Judicial Ethics to canon 6D, shall comply with the
terms of that canon." For documents concerning adoption of canon 6D see lener of January 3 ,
1996, from Chief Justice Malcolm M. Lucas t o S tate Bar, Report o f the Special A d Hoc Rules
Subcommittee of the State B ar ' s Committee on Professional Responsibility and Conduct
(chaired by Stanley W. Lamport, Esq.).
69
70 See Handbook section 1 .4 1 concerning the requirement of active Bar membership for members
engaged in private dispute resolution.
22
Ch. 1
1 .36
tion applicable to temporary judges, and canon 6D(9) which creates particular
rules applicable to temporary judges appointed under rule 2 . 8 1 0 of the
California Rules of Court related to use of title and service as a temporary
judge. At the same time, rule 2. 8 1 0 et seq. establish rules for selection, train
ing and other quality control matters for temporary judges appointed by the
court who usually serve in small claims, traffic, family law, and other areas in
courts around the state.71
23
--
1 .41
c.
[1.41]
Pt. 1
d. [1.42]
Standards and Guidelines for Judicial Assignments (Effective as revised April 20, 2006) ill
(B) ( l )(c).
73
74
Rules and Regs. of State Bar, Membership Rules, tit. 2, rule 2.30(B).
75
See e.g., Kennick v. Commission ( 1 990) 50 Cal.3d 297; Inquiry Concerning Judge James
Com. on Jud. Performance, Ann. Rep. ( 1998), Public Censure and Bar, p. 1 9; Inquiry
Concerning Judge Trammell, Com. on Jud. Performance, Ann. Rep. ( 1999), Public Censure and
B ar, p. 1 7 .
76
Ross,
24
1 .44
Ch. 1
As noted in
Handbook
D.
[1.44]
The courtroom setting is obviously the most important part of the work of
judges and is the aspect of being a judge that should draw the most attention.
Although judges are well aware of the Code of Judicial Ethics, the pressures
of the courtroom and other factors are not always conducive to reflection.
Events in court often take place without warning and do not easily lend
themselves to contemplation, especially when events in the courtroom tempt
angry responses or unconscious appearances of unfairness . More often than
not, courts are also under time pressures. Everyone is capable of being "set
off" by something, and acceptable levels of tolerance are often difficult to
maintain, especially when j udicial authority is challenged.79 Everyone has
blind spots and unconscious biases which sneak past even the most vigilant ef
fo rts at objectivity and impartiality .80
In November 2002, the Commission on Judicial Performance published a
study of disciplinary cases for the period 1 990 through 1 999. My own analysis
of the disciplinary cases for the period
the study. The study involved development of a statistical analysis of all forms
77
These rules apply to a mediator included on a superior court list that is selected by the court
or parties to serve, or a mediator who is selected within a court mediation program. See Cal.
Rules of Court, rule 3.85 1 (a)( l ) and (2).
78
79
See
Handbook
section 2.43.
80
See
Handbook
section 2 . 1 0 et seq.
25
CJBNS.ORG